Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: VA/02086/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 April 2017
On 26 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE R C CAMPBELL

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SHEILA DAPHNE GRAY COLEY
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr J Parkinson (Senior Home Office Presenting Officer)
For the Respondent: Mr M Adophy (Solicitor)

DECISION AND REASONS

1. It is convenient to refer to the parties as they were before the First-tier Tribunal. Ms Coley is the appellant, therefore, and the Secretary of State the respondent.

2. The appellant’s appeal against a decision to refuse her entry clearance as a visitor was allowed by First-tier Tribunal Judge Davey (“the judge”) in a decision promulgated on 26 September 2016. The judge allowed the appeal on human rights grounds, having taken into account guidance given in Mostafa [2015] UKUT 112, finding that the appellant met the requirements of paragraph 41 of the Immigration Rules (“the rules”). He found that refusal of entry clearance met the threshold of engagement for the purposes of Article 8 and that, overall, the adverse decision amounted to a disproportionate response.

3. In grounds in support of an application for permission to appeal, it was contended that the judge made a material misdirection in relation to his finding that Article 8 was engaged in the context of family life. Mention was made of MS [2004] UKIAT 00064, Kugathas [2003] EWCA Civ 31 and Ghisling and Others [2013] UKUT 00567, the author of the grounds noting that there was no specific finding that “additional dependency” existed between the appellant and the family members she sought to visit, so as to engage Article 8. It was also contended that the proportionality assessment was inadequate as there was no explanation as to why refusal of the visit visa amounted to a disproportionate interference with the appellant’s Article 8 rights (or those of family members). There were no sufficient grave consequences to show that Article 8 was engaged.

4. Permission to appeal was granted on 14 February 2017.

Submissions on Error of Law

5. Mr Parkinson said, on behalf of the Secretary of State, that the judge erred by starting with the requirements of the rules and in finding first that those requirements were met. As was clear from Adjei, the first question was whether Article 8 was engaged at all. The appellant last visited the United Kingdom in 2004 and it was difficult to see how Article 8 was engaged in the family life context or why family life was considered to exist between her and her adult children. The judge appeared to treat the requirements of the rules as a determinative issue. There was no adequate evidence before him showing that Article 8 was engaged in this entry clearance appeal. In Mostafa, it was noted that where the requirements of the rules are met, this may be a weighty factor but is not a determinative one. In the Upper Tribunal decision in Kaur, at paragraph 42, attention was drawn to the need to show a particularly pressing need. Here, there was no indication why Article 8 was engaged.

6. The judge also failed to deal with the Secretary of State’s submissions in the appeal, on behalf of the Entry Clearance Officer, regarding changed circumstances. The earlier visit in 2004 took place in the context of different circumstances. The appellant was now retired and widowed. The decision was flawed and, on the facts, the appeal fell to be dismissed.

7. Mr Adophy said in response that there was no material error of law on the judge’s part. The judge did indeed begin by asking whether the appellant met the requirements of the rules. As Mr Parkinson said, this was a weighty factor in the context of the proportionality assessment. The judge addressed himself to the proper question, which was whether refusal of entry clearance engaged Article 8 and whether there was sufficient interference with the appellant’s Article 8 rights to show engagement. On the totality of the evidence, it was clear that the appellant had come to the United Kingdom twice before and had a good immigration history. Her family members here included her children and grandchildren.

8. The cases referred to in the Secretary of State’s grounds were concerned with dependency between adults and siblings. The present appeal was simply about entry clearance for a visit. There was clearly family life between the appellant and her family members. Once the judge found that the requirements of the rules were met, he went on to ask whether Article 8 was engaged and applied guidance given in Mostafa. The judge had the correct issues in mind and there was no material error in the decision.

9. In a brief response, Mr Parkinson said that it was clear from Mostafa that the question of compliance with the rules became relevant only if Article 8 were engaged. The authorities referred to in the grounds were relevant. There was nothing to show that family life existed in the present appeal and the judge was wrong to allow it.

Conclusions on Error of Law

10. The very experienced judge reminded himself of guidance given by the Upper Tribunal in Mostafa and, having summarised the evidence (at paragraphs 5 to 9 of the decision) set out in paragraph 10 his conclusion that the requirements of the rules were met. He was at pains to direct himself that the appeal could not be allowed on this basis and that compliance with the rules was a relevant factor, should Article 8 be found to be engaged. In so doing, he was not only applying guidance given in Mostafa, his approach was entirely consistent with the later case of Kaur [2015] UKUT 487 (IAC), in which the Upper Tribunal reviewed the several recent authorities and found no conflict between Mostafa and Adjei [2015] UKUT 261.

11. It is clear from the decision that the judge made a finding that Article 8 was engaged in the context of the appellant’s family life with her children and grandchildren here. This was similar to the finding of fact made by the Upper Tribunal in Kaur, where what was proposed by the appellant in that case was a visit to the United Kingdom to spend time with her son and sponsor, her daughter-in-law and her grandchildren. An important difference between the present appeal and Kaur is the adverse finding made by the Upper Tribunal in the latter case in remaking the decision, concerning compliance with the rules. Although the Upper Tribunal in Mostafa identified married couples and parents with minor children as those relationships likely to engage Article 8 in the family life context in entry clearance cases, other relationships were not ruled out. The Upper Tribunal in Kaur described as “well established” that family life is not confined to parents and children and can include ties with near relatives, including grandchildren.

12. In the application for permission to appeal, several cases were mentioned, including Ghisling and Others, where the Upper Tribunal held that financial dependence may be an important component of dependency. In the present appeal, the judge found as a fact that the appellant was being maintained by her sponsor and his sisters. The judge clearly had in mind all the evidence and, I conclude, was entitled to find also that Article 8 was engaged in the family life context, similar to the finding made by the Upper Tribunal in Kaur. In paragraph 13, he weighed the evidence and found that refusal of entry clearance amounted to an interference with family life sufficient to show that Article 8 was engaged. Although other judges might have reached a different conclusion, I find that the judge did not err in law in so finding. As is also clear from paragraph 13 and those that follow, the judge then reminded himself of his earlier finding regarding compliance with the rules, a weighty but not determinative factor, before then reaching his overall conclusion that the adverse decision was, in the particular circumstances of this case, a disproportionate response.

13. I conclude that the judge made no misdirection in relation to the law, properly applied guidance given by the Upper Tribunal, weighed the evidence and reached findings of fact that were open to him. Overall, no error of law has been shown and the decision of the First-tier Tribunal shall stand.

Notice of Decision

The decision of the First-tier Tribunal shall stand.

Signed R C Campbell Date 25 April 2017

Deputy Upper Tribunal Judge R C Campbell

ANONYMITY

There has been no application for anonymity and I make no direction on this occasion.

Signed R C Campbell Date 25 April 2017

Deputy Upper Tribunal Judge R C Campbell